Can judges determine their own impartiality?

By
Jennifer K. Robbennolt, JD, PhD, and Matthew Taksin, JD, University of Illinois College of Law

2010, Vol 41, No. 2

Print version: page 24

For justice to be truly blind, litigants must have access to unbiased legal proceedings. Accordingly, legal decision-makers, whether jurors or judges, are expected to evaluate cases on their merits, without prejudice or preconception. To this end, individual jurors may be excused from service if they are unable or unwilling to keep an open mind. Similarly, judges may recuse themselves on their own initiative or in response to a motion by a party.

It can be difficult, however, for a judge to assess his or her own impartiality. In June 2009, the U.S. Supreme Court decided Caperton v. A.T. Massey Coal Co. Inc. (129 S.Ct. 2252), addressing the issue of whether a judge must recuse himself or herself from a case when one party has donated a significant sum in support of that judge’s election. In Caperton, a West Virginia trial court found that the A.T. Massey Coal Co. was liable for $50 million in damages arising out of a business dispute. After the verdict but before the case was appealed, West Virginia held its judicial elections. Massey’s chairman and chief executive officer, Don Blankenship, expended $3 million to support Brent Benjamin’s candidacy for a judicial seat on the West Virginia Court of Appeals — the court that would hear the appeal in Massey’s case. Benjamin was elected.

The plaintiffs in the case moved three times to disqualify Benjamin from hearing the case. Benjamin denied each motion, reasoning that he was not biased. With Benjamin casting the deciding vote, the court reversed the $50 million judgment against Massey.

On appeal, the U.S. Supreme Court considered whether Benjamin’s failure to recuse himself violated the due process Clause of the U.S. Constitution and found that due process required that he be recused. Considering “a realistic appraisal of psychological tendencies and human weakness,” the court found that the circumstances of the case — in particular the timing and “significant and disproportionate influence” of Blankenship’s financial support — presented a risk of bias sufficient to interfere with due process.

Caperton raises a number of interesting questions for psychologists. First, it highlights the limitations inherent in judging one’s own biases. Psychologists have shown that individuals experience an illusion of objectivity: People believe they are objective (Pyszczynski and Greenberg, 1987), see themselves as more ethical and fair than others (Messick et al., 1985), and experience a “bias blind spot,” the tendency to see bias in others but not in themselves (Pronin et al., 2004). As noted by Judge Richard A. Posner in his book “How Judges Think” (Harvard University Press, 2008), “We use introspection to acquit ourselves of accusations of bias, while using realistic notions of human behavior to identify bias in others.” These tendencies make it difficult for judges to identify their own biases. Similar problems arise when judges rely on jurors to evaluate whether they can set aside their biases and judge a case on its merits (Rose and Diamond, 2008).

Second, the Supreme Court in Caperton did not inquire into whether Benjamin was biased. The court said, “Due process ‘may sometimes bar trial judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties.’” Instead, it is the appearance of justice that matters.

Finally, research in psychology can inform the development of rules and procedures for recusal, as well as the questions judges should ask themselves when faced with a motion requesting recusal. Most judicial recusal situations are governed by state law and state codes of judicial ethics. In Caperton, the Supreme Court made it clear that states are free to have more demanding requirements than those imposed by the Constitution. As states contemplate revisions to their judicial codes, they might consider using objective triggers for recusal and avoid leaving the recusal decision solely to the discretion of the challenged judge. States might also consider rules that make it easier for judges to recuse themselves by framing the recusal decision in terms of the appearance of impropriety, rather than asking a challenged judge to evaluate his or her actual biases.

“Judicial Notebook” is a project of APA Div. 9 (Society for the Psychological Study of Social Issues).